U.S. Patent Office Needs Its Independence Restored

Western liberal democracy’s greatest advance over the past several centuries has been the creation of an independent judiciary.

What separates a modern democracy from medieval England, or for that matter from modern-day Russia, is a system in which legal disputes are settled not by reference to the king’s (or President Putin’s) good graces, but by neutral arbiters applying the law to facts without fear that their decision will result in adverse political or personal consequences to themselves.

While we may not like an outcome in any given case, or even a particular judge’s general approach to the law, we trust that the judge is deciding the case according to his best understanding of what the law requires.

Thus, some of us may disagree with Justice Ruth Bader Ginsburg, and others may disagree with Justice Clarence Thomas — but most of us do not question either justice’s impartiality or expect them or any of their colleagues to decide cases so as to please their superiors or members of the political branches.

Over the past few decades, however, the ability of litigants to have their cases adjudicated by independent judges has been steadily eroding. Instead of having their day in court, more and more individuals are forced to have their cases heard by government bureaucrats.

Imagine having a dispute with your neighbor over the property line settled by some mayoral aide. That would be bad enough. Now imagine that you and your neighbor belong to different political parties and that the mayor is elected in partisan elections. How confident would you feel about the outcome of your case?

Even if you were to win, how confident would you be that your win will last past the next election? And yet, this is precisely what is happening with some of the most valuable property rights held by American citizens and companies.

When the first Congress gathered in Philadelphia in 1793, it had a lot on its plate, including having essentially to create a country and its government from scratch. Given that enormous task, it might seem strange that one of the very first bills it passed was the Patent Act.

Weren’t there more important things for Congress to do? As it turns out though, our Founding Fathers (and subsequent legislators of all political stripes) understood the importance of patents and patent rights to the progress of the country. As Mark Twain later wrote, “a country without a patent office and good patent laws was just a crab, and couldn’t travel any way but sideways or backwards.”

The patent system is grounded in a basic bargain that in exchange for giving the public the benefit of new and useful products, the inventor will receive, for a limited period of time, an exclusive right to make, use, sell and import such products.

These rights have always been viewed, by judges, politicians, inventors, and even critics, as property. And so it is no surprise that from 1793 and until 2012, Congress required that any disputes over these rights be settled in a traditional way — before a federal judge and a jury.

However, by 2012, Congress became convinced that too many patents were being issued in error, that the cost of litigation was too high, that litigation took too long, and that the uncertainty hurt both the patentees and the public.

In response, Congress decided to create an entirely new system for patent adjudication, one that would be run not by independent judges, but by low-level government bureaucrats housed in the Patent Office who bear lofty titles of “administrative patent judges.”

These “judges” are not independent because they work for the presidentially appointed director of the Patent Office.  The director — Andrei Iancu, shown in the photo above — gets to choose whom to hire, whom to assign to which cases, whom to promote, etc.

Although the idea was to speed up litigation and leverage the Patent Office’s expertise in highly technical matters, the result was entirely predictable. Under the leadership of former President Barack Obama’s appointee, this process resulted in hundreds of patents being invalidated.

When the Patent Office leadership did not get the results they wanted, they simply “packed” the hearing panels until they reached the “right” result. The newly installed director, this time appointed by President Donald Trump, is expected to direct the administrative patent judges to take a somewhat different tack.

The administrative patent judges will obey. They will do so not because they are incompetent or weak-willed. I know many of these people. A number of them are former colleagues and current friends. They are dedicated public servants.

Yet they are merely federal employees and are entirely subservient to the director, the secretary of commerce, and ultimately the president, each of whom can direct a certain result in any given case.

The resolution and security of property rights in patents thus depends on prevailing political winds and not merely on neutral and dispassionate application of the law to facts. The question is not whether a Democratic–appointed director or a Republican–appointed one has better policies and approaches to patent law.

The question is whether decisions made under the watchful eye of one’s superiors who are responsible for your promotions, raises, case assignments, etc., can be perceived as sufficiently independent to instill confidence in the public.

The Supreme Court is now considering this very issue in a case called Oil States v. Greene’s Energy. While the parties framed the issue in complicated constitutional terms, in reality the matter is simple.

If the Supreme Court lets this system stand, what other rights will be next to not receive a hearing before an independent judge? Many cases are complicated, expensive, and take a long time.

We should not surrender the crowning jewel of liberal democracy so easily.

For instance, medical malpractice cases not only fit this description, but have an effect on how all doctors practice medicine. Will Congress next require that these be adjudicated by “administrative health care judges”?

It is hard to see a logical stopping point, and, absent one, we will quickly travel backward to a time when justice depended not on independent judges, but on kings’ graces. We should not surrender the crowning jewel of liberal democracy so easily.

Dr. Gregory Dolin is an associate professor of law and co-director of the Center for Medicine and Law at the University of Baltimore. He served as a law clerk to the Hon. Pauline Newman of the U.S. Court of Appeals for the Federal Circuit and the late Hon. H. Emory Widener Jr. of the U.S. Court of Appeals for the Fourth Circuit. 

(photo credit, homepage image: Patent Office Bldg, CC BY-SA 2.5, by Aude / Andrei Iancu by Irell & Manella, Law.com; photo credit, article image: Andrei Iancu by Matthew Scott)